Facts and Evidence - Chapter 13 - Arbitration Law of Russia: Practice and Procedure
Mr. Khodykin holds a Ph.D in Law and, from 2005 to 2012 he was an associate professor at the Moscow State Institute of International Relations (MGIMO), in addition to being in private practice.
Recognised as a rising star by Chambers & Partners, Mr. Khodykin is a frequent speaker at seminars and conferences and has authored numerous publications on international commercial arbitration and conflict of laws.
He has acted as arbitrator in cases under the ICC Rules and the Rules of the Court of Arbitration for Sport at the Russian Olympic Committee. Based in London, Mr. Khodykin advises on a wide range of litigation and arbitration matters, including commercial cases, repossession of aircraft, real estate litigation, corporate disputes and oil and gas industry cases. Mr. Khodykin has represented a broad range of clients in national and cross-border matters, including matters before the LCIA, ICSID and the International Commercial Arbitration Court at the Russian Federation Chamber of Commerce and Industry. He has experience litigating cases before various Russian courts, including the Russian Federation Constitutional Court, the Supreme Arbitrazh Court (the highest judicial authority in Russia for commercial courts) and the Supreme Court.
13.1. BURDEN OF PROOF
The rules of nearly all international arbitration institutions require each party to prove the facts upon which it relies in support of its case 1 and Russia-based arbitrations are no exception. In particular, Section 31 (1) of the ICAC Rules specifies that the parties must prove the circumstances on which they rely in support of their arguments. If a party does not produce evidence to support its argument, the tribunal will most likely dismiss the argument or the entire case.2
An exception may be made for obvious facts: force majeure like earthquake, flood, etc., do not usually require any additional proof. In the course of preparations, the arbitrators have to consider whether the aim of the arbitration requires them to be active, posing questions to the parties and making comments in order to clarify obscurities.3 It is a continental European tradition that a court takes the initiative in directing the establishment of the facts and the law. 4 The same is true in the majority of arbitrations in Russia; proceedings are more inquisitorial than in common law countries.
While this characteristic is pertinent for court proceedings, arbitration proceedings are more flexible. The parties and the tribunal may agree to conduct proceedings in an adversarial or an inquisitorial way or in a hybrid manner. Often a blend of inquisitorial and adversarial is the best solution. 5
FACTS AND EVIDENCE
13.1 Burden of Proof
13.2 Standard of Proof
13.3 Admissibility of Evidence
13.5 Documentary Evidence
13.5.1 Form of Documents to Be Presented to the Arbitral Tribunal
13.5.2 Requirement to Produce Certain Documents and Consequences of Failure to Do So
13.5.3 Document Confidentiality and Legal Privilege
13.6.1 Appointment and Presentation of Experts by the Party or the Arbitral Tribunal
13.6.2 Admissibility and Role of Expert Witnesses
13.6.3 Independence and Impartiality of the Expert and the Right to Reject a Proposed / Appointed Expert